Who should speak for the courts and how? The courts and media today
Date of this Version
In late 1996, the High Court handed down its judgement in the Wife native title case. A majority of the High Court held that native title could persist in pastoral leaseholds. The Howard government castigated the High Court, saying that the decision would create legal uncertainty and threaten investment. Alarmist and inaccurate blogs sprung up throughout cyberspace, claiming that successful native title claims could be successfully made anywhere in Australia.
The High Court did nol respond to the government's attacks on the Wife judgement. Chief Justice Brennan later said that it was not the role of the courts to protect the courts. Brennan lamented the demise of the barrister/journalist who could be relied on to give an accurate account of judgements and opined that the media should work harder to explain the work of the courts. The Attorney-General, Daryl Williams, declined to defend the High Court. He said that it was the job of the courts to explain their work. The shadow Attorney-General, Robert McClelland, pointed to the tradition that the Attorney-General as 'first law officer' could and should intervene to protect the courts from criticism. Justice Michael Kirby, then the junior judge of the Court, stepped into the breach, attempting to explain the Wife judgement in extra-curial remarks. Justice Kirby's speech angered the Chief Justice, who saw Kirby's intervention as a mark of disrespect for his leadership of the High Court. Kirby's speech, somewhat provocatively entitled 'Judicial Activism', enraged the Deputy Prime Minister, Tim Fischer, who then insisted that the next appointee to the High Court should be a 'capital C conservative'. This politicised the judicial appointment process. The Howard Government pressed ahead with a 'Ten Point Plan'
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